Did the Russians Hack Hillary?

Earlier this week, leaders of the Democratic National Committee and former
officials of Hillary Clinton’s presidential campaign made the startling allegation
that the Russian government hacked into Clinton’s colleagues’ email accounts
to tilt the presidential election toward Donald Trump. They even pointed to
statements made by CIA officials backing their allegations.

President-elect Trump has characterized these claims as "ridiculous"
and just an "excuse" to justify the Clinton defeat, saying they’re
also intended to undermine the legitimacy of his election. He pointed to FBI
conclusions that the CIA is wrong. Who’s right?

Here is the back story.

The American intelligence community rarely speaks with one voice. The members
of its 17 publicly known intelligence agencies – God only knows the number
of secret agencies – have the same biases, prejudices, jealousies, intellectual
shortcomings and ideological underpinnings as the public at large.

The raw data these agencies examine is the same. Today America’s spies rarely
do their own spying; rather, they rely on the work done by the National Security
Agency. We know that from the Edward Snowden revelations. We also know from
Snowden that the NSA can monitor and identify all digital communications within
the United States, coming into the United States and leaving the United States.
Hence, it would be foolhardy and wasteful to duplicate that work. There is quite
simply no fiber-optic cable anywhere in the country transmitting digital data
to which the NSA does not have full-time and unfettered access.

I have often argued that this is profoundly unconstitutional because the Fourth
Amendment requires a judicially issued search warrant specifically describing
the place to be searched or the thing to be seized before the government may
lawfully invade privacy, and these warrants must be based on probable cause
of criminal behavior on the part of the person whose privacy the government
seeks to invade.

Instead of these probable cause-based, judicially issued search warrants, the
government obtains what the Fourth Amendment was written to prohibit – general
warrants. General warrants are not based on evidence of probable cause of criminal
behavior; rather, they are based on government "need." This is an
unconstitutional and absurd standard because the government will always claim
that what it wants, it needs.

General warrants do not specifically describe the place to be searched or the
thing to be seized; rather, they authorize the bearer to search where he wishes
and seize whatever he finds. This is the mindset of the NSA – search everyone,
all the time, everywhere – whose data forms the basis for analysis by the other
agencies in the intelligence community.

In the case at hand, the CIA and the FBI looked at the same NSA-generated raw
data and came to opposite conclusions. Needless to say, I have not seen this
data, but I have spoken to those who have, and they are of the view that though
there is evidence of leaking, there is no evidence whatsoever of hacking.

Leaking is the theft of private data and its revelation to those not entitled
or intended to see it. Hacking is remotely accessing an operational system and
altering its contents – for example, removing money from a bank account or
contact information from an address book or vote totals from a candidate’s tally.
When Trump characterized the CIA claim that the Russians hacked the DNC and
Clinton campaign emails intending to affect the outcome of the election as ridiculous,
this is what he meant: There is no evidence of anyone’s altering the contents
of operational systems, but there is evidence – plenty of it – of leaking.

If hackers wanted to affect the outcome of the election, they would have needed
to alter the operational systems of those who register voters and count votes,
not those who seek votes.

During the final five weeks of the presidential campaign, WikiLeaks released
tens of thousands of DNC and Clinton campaign emails to the public. WikiLeaks
denies that its source was the Russian government, yet for the purposes of the
DNC and Clinton campaign claims, that is irrelevant because whoever accessed
these emails did not alter the operational systems of any of the targets; the
accessor just exposed what was found.

We do not know what data the president-elect examined. Yet in six weeks, he
will be the chief intelligence officer of the U.S., and he’ll be able to assimilate
data as he wishes and reveal what he wants. He should be given the benefit of
the doubt because constitutionally, the intelligence community works for him
– not for Congress or the American people.

Who did the leaking to WikiLeaks? Who had an incentive to defeat Clinton? Whose
agents’ safety and lives did she jeopardize when she was extremely careless
– as the FBI stated – with many state secrets, including the identity and
whereabouts of U.S. intelligence agents and resources?

The answer is obvious: It was the same intelligence community that cannot agree
on the meaning of the raw data it has analyzed.

Someone leaked the Democrats’ and the Clinton campaign’s private work, and
the government has a duty to find the person or entity that did so, even if
it was one of the government’s own. Though the truthful revelation of private
facts may have altered some voters’ attitudes, there is no evidence that it
altered ballot totals. The law guarantees fair elections, not perfect ones.

Did the Russians hack Hillary Clinton? No. No one did. But some American intelligence
agents helped WikiLeaks to expose much dirty laundry.

Author: Andrew P. Napolitano

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel and anchor of FreedomWatch on Fox Business Network. His most recent book, It Is Dangerous To Be Right When the Government Is Wrong, was released in October 2011.
View all posts by Andrew P. Napolitano